Never Another Clinton Court

If you think the Supreme Court is a threat now, imagine a 7-2 majority against everything you hold dear — for generations.

By Cathy Ruse Published on October 21, 2016

If you think the Supreme Court is a threat now, imagine a 7-2 majority against everything you hold dear — for generations. That is what’s at stake this November.

By the end of the next president’s term, five justices will be over 70 years old and three will be over 80. Odds are, in addition to Justice Scalia’s vacant seat, the next president will have one, two, even three more vacancies to fill.

For decades, we have had a closely divided Supreme Court. The current court can be divided into four “problem-solvers” who take an active role in advancing the liberal political agenda (Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan), three “umpires”  (Clarence Thomas, John Roberts, and Samuel Alito), and one swing vote, Anthony Kennedy, upon whom all eyes are focused during major cases each term.

In fact, Americans have gotten so used to wins and losses being handed out to each political faction in rough parity that it’s difficult to imagine what an unrestrained, revolution-minded court might do.

Fifty years is a long time to cast your memory back to the dramatic liberal activism of the Warren Court, or even the Roe court a decade later, both of which made decisions that involved vast social changes. What vast social changes would such a court make today? Think of all the crazy leftist policies cropping up at colleges and universities, and then imagine them being imposed on the nation by a runaway court.

Or simply consider the politically explosive close cases from the last twenty-five years, each of which would have come down differently had just one seat been filled by a different type of justice.

And then ask yourself whether stare decisis would provide even a small speed bump to a leftist, revolution-minded court with a 7-2 majority, bent on correcting the “mistakes” of the past.

  • Whole Women’s Health v. Hellerstedt (2016): A 5-4 majority ruled that improving abortion safety standards (hospital admitting privileges and ambulatory surgical center standards) violated a woman’s right to choose abortion.
  • Fisher v. University of Texas (2016): A 4-3 majority upheld the use of race in higher education admissions (Justice Scalia had passed away and Justice Kagan recused herself).
  • Obergefell v. Hodges (2014): A 5-4 majority imposed gay marriage on the nation over the objections of an overwhelming majority of states whose citizens had voted for man-woman marriage in state referenda.
  • NFIB v. Sebelius (2014): A 5-4 majority upheld the Obamacare individual mandate forcing everyone to purchase a government-approved health insurance plan as a constitutional exercise of Congress’s taxing power.
  • Burwell v. Hobby Lobby (2014): A 5-4 majority ruled that individuals do not lose their religious freedom when they open a family business.
  • Town of Greece v. Galloway (2014): A 5-4 majority affirmed the freedom of Americans to pray according to their own beliefs at public meetings.
  • S. v Windsor (2013): A 5-4 majority ruled that Congress must not define “marriage” in federal laws to mean man-woman marriage.
  • District of Columbia v. Heller (2010): A 5-4 majority ruled that the Second Amendment protects an individual’s right to possess a firearm unconnected with service in a militia.
  • Citizens United v. FEC (2010): A 5-4 majority restored the First Amendment protection of political speech, allowing non-profit corporations and others to come together with their donors and supporters to educate the American people.
  • Gonzales v. Carhart (2007): A 5-4 majority upheld a federal law restricting the use of the horrific partial-birth abortion technique.
  • Boy Scouts of America v. Dale (2000): A 5–4 majority ruled that the Boy Scouts are not required by the Constitution to hire gay activist scout leaders (a policy they later adopted voluntarily).
  • Bush v. Gore (2000): A 5-4 majority ruled that the presidential election recount procedures pursued by candidate Al Gore were not constitutional, which allowed Florida to certify George W. Bush as the winner in Florida and hence the nation.
  • Rosenberger v. UVA (1995): A 5-4 majority upheld the right of religious student groups to receive university funding on an equal basis with other student groups.
  • Lee v. Weisman (1992): A 5-4 majority ruled that schools must not sponsor a member of the clergy to conduct even non-denominational prayers at a graduation.
  • Rust v. Sullivan (1991): A 5-4 majority upheld Reagan Administration regulations providing that federal tax dollars could go to family planning but not to abortion counseling, referral, or advocacy.

It is impossible to overestimate the importance of the future of the Supreme Court in the presidential election of 2016.


Cathy Ruse, JD, is a Senior Fellow for Legal Studies at the Family Research Council Action.

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